therefore but one doektlt fee. It is best that the practice be uniform, and this is followed. '. This objection is ·sustained. The clerk will correct the taxation of costs by striking out the item of $20 in the district court costs.
June 22, 1891.)
(Oircuit Court, D. South. Carolina.
ADMIRAL'l'y-TAXATION OF COSTS.
The district court ordered respondent to pay costs, and then dismissed the libel. Libelant appealed, and the decree was affirmed, with costs. Held, that libelant was to pay the costs of the circuit court and respondent those of the district COU1't.
In Admiralty. C. B. Northrop, for 1. N. Nathans, for respoudent.
SIMONTON, J. This case also comes up on taxation of costs. The district court ordered respondent to pay the costs, and then dismissed the libel. 45 Fed. Rep. 119. Libelant appealed. 'l'he circuit court affirmed the decree of this district court, with costs. . The clerk taxed $20 docket fee for Mr. Nathans, and libelant excepted. All of his grounds but one have been passed upon in the Case of Mellor, 46 Fed. Rep. 662. The libelant insists that as the circuit court affirms the decree of the district court, and that decree required respondent to pay costs, so he must pay the costs of this court. This is specious. The decree of the cuit court is in two parts. First, it affirms the decree of the district court. .It then fixes theoosts of that court on the appellant. The respondent will pay tne costs of the district court. But, as in the taxation of these costs a docket fee of $20 is charged, and we have concluded in the Mellor Case that this is error, the clerk of this court will eliminate this item, and his allowance of $20 to respondent's proctor in this court is confirmed.
J'EDER.A.L REPOJil,TER, vol. 46. THE ANJER HEAD.· UNITED STATES
THE ANJER HEAD.
(DUitrict Court, D. New Jersey. December 8, 1890.)
ILLEGAL PUMPING-LTAllILITY OF VESSEL-ACT OF JUNE
29,1888. When an employe on board of a steam-ship threw overboard a single scuttle of ashes in a place prohibited by the statute of .June 29, Hi88, (25 St. at Large, p. 209,) entitled" An act to prevent obstructive and injurious deposits within the harbor of New York, by dumping or otherwise, and to punish and prevent such offenses, " and there was no proof of orders by anyone in authority, it was held 'uat the steam-ship was not used or employed in a violation of the law, in the sense of tile statute, and was not liable in rem to the penalties therein prescribed.
In Admiralty. Suit to recover a penalty. George S. Duryea, U. S. Atty., and H. W. Hayes, Asst. U. S. Atty., for the United States. Convers & Kirlin, (Mr. Kirlin, of counsel,) for claimant. GREEN, J. The first exception taken by the claimants to the libel is well founded, and is sustained. The allegation of the libel is that, while the steam-ship Anjer Head was in New York harbor, some one on board of her did deposit in the tidal waters of the harbor ashes and cinders, contrary to the statute in such case made and provided. The faets, as admitted, are that an employe on board the steam-ship did throw overboard a single scuttle of ashes at the place named. Such employe was undoubtedly technically guilty of violating the statute. But these proceedings are not against him, but are brought against the steam-ship, being based upon the last clause of section 4 of the statute referred to in the libel. That clause reads as follows: "Any boat or vessel used or employed in violating any provisions of this act shall be liable," etc. The emphatic words in this clause are" used" and "employed." Practically, they are synonymous, and they mean" to make l.1se of," "to put to a purpose." The clause in question, then, renders every boat or vessel "put to the purpose" of violating the provisions of this statute liable to the penalties. It is quite evident that the Anjer Head was not so engaged in such violation. To be put to such or to any purpose necessarily requires antecedent determination on the part of her master or owners, or of some one with sufficient authority that she shall perform such purpose. A vessel can only be used or employed by or with the consent of the person who has the legal right to use and employ. There is no pretense that there was any such use or employment in this case. Libel is dismissed.
IReported by Edward G. Benedict, Esq., of the New bar.